2014 SCC Vol. 9 October 21, 2014 Part 1

  • Constitution of India — Arts. 75(1); & 164(1); and 32 — Appointment of Council of Ministers (Union or State) “Advice” under Arts. 75(1); and 164(1); means formation of opinion by PM/CM and it is in their wisdom to choose any person for appointment as Minister of Council of Ministers. Said formation of opinion by PM/CM is expressed by use of word “advice” under Arts. 75(1); and 164(1); because of immense trust reposed in PM/CM under the Constitution. However, at the same time, it is a legitimate constitutional expectation from PM/CM that they would give apposite advice to President/Governor and would not choose persons as Ministers who have criminal antecedents, especially those facing charges in respect of serious or heinous criminal offences or offences pertaining to corruption. PM/CM have to bear in mind that unwarranted elements or persons who are facing charges in certain categories of offences may thwart or hinder the canons of constitutional morality or principles of good governance and eventually diminish the constitutional trust. In democracy, people never intend to be governed by persons who have criminal antecedents. Manoj Narula v. Union of India (2014) 9 SCC 1
  • Criminal Procedure Code, 1973 — Ss. 389 and 439 — Involvement of Public Prosecutor There is a marked difference between the procedure for consideration of bail under Section 439, which is pre-conviction stage and Section 389 CrPC, which is post-conviction stage. In case of Section 439 CrPC, only notice to the Public Prosecutor, unless impractical, has to be given before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or where the punishment for the offence is imprisonment for life; whereas in the case of post-conviction bail under Section 389 CrPC, where the conviction in respect of a serious offence having punishment with death or life imprisonment or imprisonment for a term not less than ten years, it is mandatory that the appellate court gives an opportunity to the Public Prosecutor for showing cause in writing against such release. Atul Tripathi v. State of U.P. (2014) 9 SCC 177

  • Government Contracts/Tenders — Enlistment/Blacklisting of Contractors : Blacklisting has to be preceded by a show-cause notice. Such an order is stigmatic in nature and debars such a person from participating in government tenders which means precluding him from the award of government contracts. Hence, there is necessity of giving an opportunity to such a person by serving a proper show-cause notice thereby giving him opportunity to meet the allegations which were in the mind of the authority contemplating blacklisting of such a person. However, once the showcause notice is given and opportunity to reply to the show-cause notice is afforded, it is not necessary to give an oral hearing. Garkha Security Services v. Govt. (NCT of Delhi(2014) 9 SCC 105
  • Limitation Act, 1963 — Art. 61 — Usufructuary mortgage : There is no fixed time-limit for usufructuary mortgagor to seek redemption and recovery of possession of immovable property mortgaged. Right to seek redemption, would accrue not from date of creation of mortgage but from date of payment of mortgage money out of usufructs or partly out of usufructs and partly on payment or deposit by mortgagor as provided under S. 62 of TP Act. Until then, limitation would not start under Art. 61 and as such, mere expiry of period prescribed thereunder would not extinguish mortgagor’s right of redemption and entitle mortgagee to seek declaration of title and ownership over mortgaged property. Singh Ram v. Sheo Ram, (2014) 9 SCC 185
  • Negotiable Instruments Act, 1881 — S. 138 :Territorial jurisdiction for filing of cheque dishonour complaint, is restricted to the court within whose territorial jurisdiction the offence is committed, which is the location where the cheque is dishonoured i.e. returned unpaid by the bank on which it is drawn. Thus, place of issuance or delivery of the statutory notice or where the complainant chooses to present the cheque for encashment by his bank are not relevant for purposes of determining territorial jurisdiction for filing of cheque dishonour complaints. Complainant is statutorily bound to comply with Ss. 177 to 179 CrPC and therefore the place or situs where the S. 138 NI Act complaint is to be filed is not of the choosing of complainant. Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129

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